Turkey Extends State of Emergency For Three Further Months From 19 October 2016

After an attempted coup on 15 July 2016, Turkey’s Council of Ministers introduced a nationwide State of Emergency. The State of Emergency ran for three months, starting from 1 AM on 21 July 2016. With a recent decision, the Council of Ministers has extended the State of Emergency for a further three month period, extending from 1 AM on 19 October 2016.

The Council of Ministers made the decision on 5 October 2016, which was subsequently approved by the Turkish Grand National Assembly (resolution on 11 October 2016, numbered 1130). The Grand National Assembly’s resolution was published in Official Gazette number 29856 on 13 October 2016. The decision is made under Article 120 of the Constitution and Article 3/1-b of the State of Emergency Law No 2935.

Please see this link for the full text of the resolution (only available in Turkish).

The Ministry of Health of the Turkish Republic (“Ministry”) has announced procedures and principles for protecting personal health data, ensuring data privacy, as well as processing and transferring personal health data. It also establishes a central system, enabling data subjects to access, amend and share their own personal health data.

The Regulation on Processing Personal Health Data and Protecting Its Privacy (“Regulation”) was published in Official Gazette number 29863 on 20 October 2016, entering into force on the same date.

Turkey introduced a new data protection regime in 2016, under the Data Protection Law number 6698 (“Law“) published in Official Gazette number 29677 on 7 April 2016. Further information about the Law and its implementation can be found here. The most recent health-related Regulation is issued in line with the Law.

The Personal Health Data Commission (“Commission”) will be established under the Ministry to determine the Ministry of Health’s policies on personal data in line with the Law and principles of Data Protection Board. It will oversee and monitor personal health data issues, including considering transfer requests, monitoring compliance, as well as resolving complaints and disputes.

Procedure for processing personal health data

A legislative confidentiality obligation applies to everyone who processes personal health data, or accesses such data as part of their duties.

Except for certain limited purposes (below), personal health data can only be processed by informing the data subject in detail about the purpose of processing the personal health data and by obtaining and maintaining explicit written consent from the data subject. Different from the Law, explicit consent for processing personal health data must be in writing, under the Regulation.

Persons or authorized institutions and organizations who are subject to confidentiality obligations, as well as authorized institutions and organizations, can process personal health data without obtaining explicit consent of the data subject, if it is processed for:

– Protecting public health.

– Preventive medicine.

– Medical diagnosis.

– Nursing and treatment activities.

– Planning and administering health services and related financing.

General principles on processing personal health data

General principles apply when processing personal health data:

– Processing must comply with the law and be done in good faith.

– Maintain data accuracy and keep it up to date (if necessary).

– Process data only for specific, clear and legitimate purposes.

– Data should be related, limited and proportional to the purposes of the processing.

– Data should be preserved only for the period necessary for the purpose of the processing.

Employees of health service providers can only process and access personal health data to the extent necessary to provide required health services.

Anonymizing and deleting personal health data

Anonymized personal health data can be published or transferred for the purposes of determining health policies, calculating health costs, or in scientific and statistical studies.

Even if personal health data is processed by complying with the Law and Regulation, if the purpose of processing such personal health data no longer exists, then at the data subject’s request, such personal health data must be anonymized or deleted. Even after such deletion or anonymization, such data will still be archived for ten years in the central system for the purpose of maintaining, using or protecting a right, or if and when needed to be served to the judicial authorities by the Ministry without losing the integrity of such data and archived data cannot be accessed except for these purposes. Personal health data transferred to the central database can be deleted from the central database ten years after being registered in the system.

Transferring personal health data

Personal health data can be transferred by and among public institutions and organizations provided that:

– Precautions determined by the Data Protection Board are taken.

– A protocol for transferring personal health data is in place between such public institutions and organizations and the Ministry (or its affiliated institutions and organizations).

– Such transfer is required by law for the purposes of:

– Protecting public health.

– Preventive medicine.

– Medical diagnosis.

– Nursing and treatment activities.

– Planning and administering health services and their financing to the public institutions and organizations.

Except for these purposes, personal health data cannot be transferred, unless it is anonymized.

Once established, the Personal Health Data Commission will consider transfer requests for purposes falling outside this scope, as well as requests to transfer data abroad. Consideration will address the Law’s provisions and take into account the delicate nature of genetic data.

Data subject rights

A data subject can revoke his or her consent to transfer and process data at any time (unless stipulated by a law, regulation or adjudication). However, revocation will not affect the processes which have already been carried out by that time.

Every citizen can create a user account via the e-government portal or with their family practitioner. Accounts can be used to:

– Object to a result obtained and analyzed by means of exclusively automated systems against his/her interest.

– Request for damages in case of a breach.

Data controller responsibilities

The Regulation requires data controllers to collaborate with the information security administrator in the relevant city, or authorized person from the Cyber Cases Intervention Team. This obligation applies to personal health data only, not all personal data contemplated by the Law.

The Law outlines general responsibilities and necessary measures for data controllers to protect personal data. Notably, data controllers should inform data subjects about:

– The data controller’s identity (or representative, if any).

– Purposes of processing personal data.

– Transfer of the data and purposes of the transfer.

– Data collection procedure and its legal ground.

– The data subject’s rights, as per Article 10 of the Regulation.

Additionally, data controllers are responsible for the safety of collected data and must:

– Prevent unlawful processing of personal health data.

– Prevent unlawful access to personal health data.

– Preserve personal health data.

– Prevent possible data loss in the system they are responsible for.

Health service provider responsibilities

The Regulation defines “Health service provider” as all real persons or public or private legal persons, providing or producing health services.

Health service providers are responsible for establishing systems to manage electronic records, as well as related security and privacy measures. Such systems should also be capable of transferring electronic health records to the central health data system, in line with standards set by the Ministry and Data Protection Board.

The Personal Health Data Commission will be established under the Ministry Counsellor. No specific deadline is set for the Ministry of Health to establish the Personal Health Data Commission.

Once established, the Commission will consist of ten members and its role will be to:

– Assist the Ministry’s policies.

– Provide opinions.

– Resolve disputes.

– Evaluate requests regarding data transfers.

– Review complaints.

– Make necessary checks.

The Commission will be empowered to make checks in related locations, to ensure lawful processing of personal health data and privacy protection.

The Health Information Systems General Management will be responsible for establishing a central data system and issuing regulations on operation of this system.

Please see this link for the full text of the resolution of the Regulation (only available in Turkish).

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Turkey Approves Major Changes to Pledge and Assignment Regime From January 2017

Turkey has introduced major legislative changes to the pledge and assignment regime, which will facilitate access to finance for SMEs and boosts competitiveness. From January 2017, existing requirements for pledges on movables under the Turkish Civil Code will no longer apply to pledges granted by merchants and tradesmen, with certain limited exceptions.

The Law on Pledge on Movables in Commercial Transactions numbered 6750 (“Law”) was published in Official Gazette number 29871 on 28 October 2016, entering into effect on 1 January 2017.

Under the new regime for non-possessory pledges (teslimsiz rehin), movables will be registered with the Movables Pledge Registry (“Pledge Registry”). The current issue of publicizing pledges on moveable property (aleniyet) will be eliminated.

A pledge will be established once the pledge agreement is filed and registered with the Pledge Registry. Signatures on pledge agreements must be notarized, or the signatures must be affixed before an officer of the Pledge Registry. Parties will be able to execute pledge agreements electronically, using secure electronic signatures.

It will become possible to create a pledge over movable goods which are not yet purchased as of the date of the pledge agreement.

Movable property will be capable of registration, without using the commercial title or name of a commercial enterprise. Therefore, companies will be able to pledge movable goods without granting a commercial enterprise pledge. A single piece of movable will be able to be pledged without handing over possession.

A notable consequence is that the new regime will likely impact current practices for assigning receivables (alacağın temliki) because establishing pledges over receivables will be possible simply by creating and registering a pledge agreement with the Pledge Registry.

These pledge agreement will be able to be executed between:

– Financial institutions on one side and merchants, tradesmen, farmers, producer organizations, self-employed real and legal persons on the other; or

Turkey’s Ministry of Finance has announced a range of new exceptions to Value Added Tax. Notable exemptions apply to fixed investments within the scope of the investment incentive certificate scheme, as well as for transfers, leases and sale of movables and immovable which are subject to financial leasing. Also, an exemption is introduced for funds managed by the Turkish Wealth Fund Management Joint Stock Company.

Communiqué No. 7 on Amending the Communiqué General Application of Value Added Tax (“Communiqué”) was published in Official Gazette number 29847 on 4 October 2016, entering into effect on the same date.

The Communiqué introduced the following exemptions to VAT:

– Transferring or leasing assets and rights to leasing companies for the purpose of issuing lease certificates is now exempt from VAT, provided the reference institution will reclaim such assets and rights on termination of the agreement.

– Transferring, leasing and sale of movables and immovables which are subject to leasing that are purchased and then re-leased to the lessee by financial leasing companies, participation banks and development and investment banks, are now exempt from VAT, provided the asset’s title will be transferred back to the lessee on termination of the agreement (within the scope of the Law No. 6361).

– Services conducted in order to manage the Turkish Wealth Fund, as well as transfers to sub-funds and the assets and rights by the Turkish Wealth Fund Management Joint Stock Company pursuant to Law No. 6741, are now exempt from VAT.

– Income distributed via transfer pricing in case of sale or acquisition of goods or services ascertained contrary to the arm’s length principles under Income Tax Law No. 193 will be deemed to be distributed implicitly. Incomes which are distributed implicitly via transfer pricing are not subject to tax deductions during determination of corporate profits. Also, VAT paid due to these expenses is not subject to tax deductions.

– A tax refund is introduced for fixed investments within the scope of the investment incentive certificate scheme, available until 31 December 2023.

– Payment of interest/coupon in exchange for financial services provided by those who buy conversions during the issuance of bonds are now exempt from VAT.

– Purchase and export of raw materials for fertilizers is now exempt from VAT, provided manufacturers obtain an exemption document from the relevant tax offices.

– Delivering goods used for feeding animals under Article 13 of the Law No. 3065 are now exempt from VAT.

Please see this link for full text of this Communiqué (only available in Turkish).

Turkey has amended labor regulations to now allow private employment agencies to execute agreements for temporary employment relationships, within certain limits. Time limits apply to these temporary employment arrangements, depending on the type of work being performed. Similarly, ratios are introduced for the maximum number of temporary employees, depending on the size of the employer.

The Turkish Labor Institution (“Institution”) published the Regulation on Private Employment Agencies (“Regulation”) in Official Gazette number 29854 on 11 October 2016, entering into force on the same date.

Length of Temporary Employment Relationships

Private employment agencies can now execute agreements with employers to provide temporary employees, as well as establish temporary employment by transferring an employee to the employer.

Temporary employment relationships can be established, subject to the following time constraints:

Employers which employ temporary employees cannot re-employ any temporary employee for the same task within six months of earlier temporary employment periods expiring.

Where employees are sent to foreign countries for temporary employment, private employment agencies must have these foreign employment agreements approved by the Institution.

General Restrictions on Employment Agreements

All employment agreements (including those for temporary employment) involving the following elements are prohibited and will be deemed invalid:

– Acting as a broker (intermediary) for staff positions in public institutions and organizations.

– Acting as a broker to find work and employees at a workplace without obtaining a permit from the Institution, or via means set forth under Law No. 5187 or similar broadcast organ.

– Advertisements and publishing announcements regarding persons that act as brokers or intermediaries for finding work and employees via media outlets and similar communication method.

– Finders’ fees for brokers or intermediaries, except for:

– Professional athletes.

– Technical directors.

– Trainers.

– Models.

– Photo models.

– Performers.

– Those who are operating in the field of performance

– General Managers and persons to be employed for similar or higher managing positions.

– Provisions which require employees to:

– Work informally.

– Join or leave a union.

– Work for less that minimum wage.

– Provisions which prevent employers and those who are seeking jobs, from obtaining job placement services from other private employment agencies.

However, private employment agencies conducting activities within the framework of Law No. 5580 can charge service fee for trainings which do not relate to brokerage.

Private employment agencies may only collect, process and use information about job-seekers and employers within the scope of the Regulation.

Mandatory Personnel Employed by Agencies

Certain personnel must be employed to work at private employment agencies. The Regulation changes the qualities and educational qualifications which such employees must posess. Employment agencies have until 1 January 2017 to meet these critera.

Please see this link for full text of the Regulation (only available in Turkish).

Turkey’s banking regulator has extended the maximum credit card instalment period from nine months to twelve months for purchasing goods and services, as well as cash withdrawals. The maximum maturity period for consumer loans has also increased from 36 months to 48 months.

The Turkish Banking Regulation and Supervision Agency extended the maximum credit card instalment period from nine months to twelve months for purchasing goods and services, as well as cash withdrawals. However, shorter limits apply for certain purchases:

– Four months for jewellery.

– Six months for electronic appliances and computers.

– Nine months for:

– Flights.

– Travel agency purchases.

– Transportation.

– Accommodation.

– Health and social services.

– Medical products.

– Payments to clubs and associations.

– Tax payments.

Credit card payments for the following are now prohibited from being paid via instalments:

Turkey Publishes Further Details of Notary and Fee Exemptions Intended to Encourage Investment

Turkey has published secondary legislation, outlining further details for a recent law which lifted notary and other fees (more). Notable exemptions mean notary fees no longer apply to document copies or amendment documents which do not impact the value of already notarized documents. Fee exemptions are also introduced for share transfers in Joint Stock and Limited Liability Companies.

Turkey’s Ministry of Economy (Revenue Administration) published the General Communiqué on Act of Fees (“Communiqué”) in Official Gazette number 29796 on 4 October 2016, entering into effect the same date. The Communiqué introduces further details for the Law Amending Certain Laws for the Purpose of Improvement of the Investment Environment No: 6728, (“Law”) published in Official Gazette number 29796 on 9 August 2016. It particularly outlines amendments to the Law on Fees No. 492.

Significant changes introduced by the Law and Communique include:

– Copies of documents which contain a value will no longer be subject to notary fees. If a proportional fee applies to the document, it will be calculated based on the number of signatures contained in only one document copy.

– Documents changing a document that has already been processed by a notary, will now only be subject to notary fee over the increased amount, if any.

– The scope of Title Deed fee exemptions is extended for financial leases, aimed at real estate financing. Accordingly, no title deed fee will be required from either the lessor or lessee to transfer real estate, which is subject to financial lease, to the lessee at the end of the lease period under the Law No 6361

– Chambers of commerce and industry can now collect certain Trade Registry fees (outlined in Annex 1 to the Law on Fees). These monthly fees must be transferred to each chamber’s related tax office by the fifteenth day of following month.

– The same fee will now apply to both General and Special powers of attorney (previously subject to different fees).

– Title deed fees will be discounted 50% for establishment of liens between merchants.

– Notary fees will not apply for contracts (and security documents) regarding financial leasing. The exemption applies to agreements between participation banks, development and investment banks, financial leasing companies and suppliers of assets.

Please see this link for the full text of the Regulation (only available in Turkish).

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Turkey Updates Tariff Regulations for Natural Gas Sector

Turkey’s energy regulator has updated the natural gas regulatory regime. The updated regulations include general tariff principles, as well as procedures and principles for preparing, inspecting, approving, publishing and revising natural gas tariffs.

The Energy Market Regulatory Authority (“EMRA”) published the Regulation on Natural Gas Market Tariffs (“Regulation”), in Official Gazette number 29856 on 13 October 2016, entering into effect on 1 January 2017.

Key arrangements updated under the Regulation include:

– Provisions categorizing natural gas tariff categories as:

– Connection.

– Transmission and delivery.

– Storage.

– Whoesale.

– Retail sale.

– EMRA will issue further regulations regarding principles and procedures for applying each type of tariff.

– The retail sale cost applied by distribution companies includes the unit purchase price of natural gas, tax, and similar financial obligations. It becomes the upper limit for a distribution company’s retail cost. Distribution companies cannot demand any other costs under the name of retail sale, except those determined by legislation.

– The inflation rate for tariffs will be determined by taking into account the consumer price index or domestic producer price index.

Please see this link for full text of the Regulation (only available in Turkish).

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Turkey Introduces Rules for Obtaining Rights to Develop Docks and Marinas on Public Property

Turkey has introduced a regulatory regime for granting easements and usage licenses for building new docks, berths, and moorage for private boats, yachts and marinas on public property. Such rights are granted to investors for up to 30 years.

Turkey’s Ministry of Finance (“Ministry”) published the National Estate General Communique No. 373 (“Communique”) in Official Gazette number 29851 on 8 October 2016, entering into force on the same date. The Communique sets procedure and principles for easements and usage licenses that will be issued according to this Communique.

Investors who wish to build facilities on estates owned by the Public Treasury must submit draft project reports (avan proje) and pre-feasibility analysis to the Ministry of Transport, Maritime Affairs and Communication (“Administration”). Upon receiving consent for the investments, investors must then apply (including the consent and related zoning plan) to the Regional Directorate of Ministry of Environment and Urban Planning.

Provisions of Public Procurement Law No 2886 will apply for tendering such easements and usage licenses, unless an exemption applies and negotiated tendering will be used.

The Ministry will grant a one year preliminary license for investors to obtain or amend construction plans, or prepare an application project report, and then obtain related approvals.

If procedures are not finalized within the preliminary license period, investors can request a time extension by providing explanations to the Ministry for the delays.

If investors fulfill their obligations within the preliminary license period, the easement will be issued to them via an authenticated deed. Usage licenses are granted via usage license agreements.

According to the Communique, investors could be granted easement on Public Treasury’s estates for 30 years at most. Usage licenses for the State’s estates can also be issued for 30 years at most.

The Communiques requires the easement owner and/or beneficiary of the usage license to obtain a construction license within six months of transferring the right or license, as well as to finish construction within two years.

The overall construction period cannot last more than five years, including the process to obtain consents and licenses from the Ministry and Administration.

Investors who are also easement owners and/or beneficiaries of the usage license can partially or fully transfer their rights and licenses to third parties under certain conditions.

Please see this link for the full text of the Communiqué (only available in Turkish).

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Turkey Updates Toy Safety Regulations Largely in Line with European Union

Turkey has amended the regulatory regime governing toy safety. The regime includes minimum safety standards for toys to be used by children under the age of 14, as well as obligations for producers, authorized representatives, importers and distributors.

The Toy Safety Regulation (“Regulation”) was published in Official Gazette number 29847 on 4 October 2016, effective from 4 April 2017. It abolishes the Regulation on Toys published in Official Gazette number 28807 on 31 October 2013.

The Regulation updates the Turkish toy safety regime, including:

– Definition of safety requirements for toys within the scope of the Regulation.

– Requirements for warning labels (including a requirement that safety instructions and warnings must be written in Turkish).

– Principles for EC conformity declarations.

– Procedures and principles for using the “CE” Mark.

– Details of safety checks which producers must conduct.

The Ministry will ensure toys that are risky and will cause damage are immediately removed and banned from the market.

Toys exported from non-EU member countries and imported into Turkey will be audited in accordance with the principles and producers outlined in the Technical Regulations on Foreign Trade and Standardization Regime Decision.

Please see this link for the full text of the Regulation (only available in Turkish).

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Turkish Court of Appeal Confirms Plaintiff’s Right to Seek Compensation Based on Hypothetical License Fee

The Turkish Court of Appeal recently confirmed a case upholding a plaintiff’s right to seek compensation for trademark infringement based on a hypothetical license fee that would have been paid if the infringing party had used the trademark under a legal licence agreement. The court approved the First Instance Court’s earlier decision to accept the claims, calculating compensation by considering all characteristics of the case, since the plaintiff had not provided a sample license agreement.

In the dispute at hand, the plaintiff sought a remedy for infringement, as well as compensation. It claimed that the defendant’s use of its registered trademark and packaging in same color and stylization constitutes a trademark infringement.

The defendant requested dismissal of the action by arguing that its use falls within the scope of the fair use exception.

The plaintiff requested compensation based on a hypothetical license fee, in accordance with Article 66(2)(c) of Turkish Trademark Decree Law. Under this provision, in case of infringement, the trademark owner can demand the value of the actual loss, as well as any loss of profit incurred. To calculate the compensation, the trademark owner is entitled to choose a license fee that would have been paid if the infringing party had used the trademark under a legal licence agreement.

The First Instance Court partially accepted the plaintiff’s infringement claims. It stated that since the plaintiff had not submitted any sample license agreement, compensation would be calculated by considering the other characteristics of the dispute, such as the value of the trademark, sales incomes and advertisement expenses.

Although the defendant filed an appeal, the Court of Appeal approved the lower court’s decision, noting that all evidence had already been considered on legal grounds.

The Union of Turkish Public Notaries (“Notary Union”) has announced that consent letters regarding real properties which do not involve real rights on real properties are exempt from stamp tax. Such documents will continue to be subject to fixed notary fees though.

According to Article 42 of the Act of Fees No. 492, the parties must demonstrate an amount for all contracts, bills and papers in relation with the purchase, sales, undertaking and pledge of movable and immovable properties. The Notary Union sought to clarify what to do if consent letters do not refer to any pecuniary debt and therefore do not contain any amounts.

The Notary Union requested an opinion from the Revenue Administration regarding whether real estate consent letters, which do not concern real rights can be deemed to be an undertaking. It further sought to clarify whether, if such consent letters are deemed to be an undertaking, whether they must contain an amount.

To support its question, the Notary Union sent a range of sample documents to the Revenue Administration. These examples included documents issued by shareholders, granting consent to each other or the third parties, regarding:

– Abandonment of real property for roads or green space, free of charge.

– Amalgamation, subdivision, partition, rectification of borders, as well as registration of a new land parcel and obtaining new land title deeds.

– Constructing a building on real estate.

– Drawing plans and projects.

– Obtaining licenses, renovation and obtaining renovation licenses.

The Revenue Administration advised that consent letters which are not related to real rights in real estates will not be considered to be an undertaking and therefore it is not necessary to determine an amount (Response No. 52778, dated 16 May 2016). As a result, these types of documents are exempt from stamp tax (although a fixed fee will still apply).

The Notary Union’s Board of Directors made the announcement via Notice Number 12, on 23 June 2016. Please see this link for full text of the Notice (only available in Turkish).

The Union of Turkish Public Notaries (“Notary Union”) has clarified that restoration and lease agreements for immovable property owned by the General Directorate of Foundations (and related foundations) are exempt from stamp duty and fees.

The Notary Union requested guidance on the topic from the Revenue Administration. To support the enquiry, the Notary Union provided a construction and lease agreement with conditional operation. The example document was a renovation agreement, executed between a private company and the Regional Directorate of Foundations (acting on behalf of the General Directorate of Foundations).

The Revenue Administration stated that as per Article 77 of the Foundations Law No 5737, immovable property owned by the General Directorate and related foundations is deemed to be state-owned property, is non-seizable, cannot be pledged and any transactions related to such property are exempt from stamp duty and fees.

The Notary Union requested further clarification from the Revenue Administration, since the first response did not clearly cover the renovation agreement provided.

The Revenue Administration responded that lease agreements with conditional operating, executed between the Foundation’s management and private companies for immovable property owned by the General Directorate of Foundations and related foundations are exempt from stamp duty and fees. Therefore, reconstruction agreements are included within such exemption.

Please see this link for Notary Union’s Circular No. 2016/11, issued on 23 June 2016 (only available in Turkish).